The Wild and Scenic Rivers Act and Federal Water Rights Page: 2 of 16
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The Wild and Scenic Rivers Act
and Federal Water Rights
During the 1960s, support grew for the idea that the development of our nation's
rivers needed to be balanced by some means of protecting for future generations
certain rivers that possessed outstanding undeveloped qualities. These sentiments
culminated in the enactment of the Wild and Scenic Rivers Act of 1968. Rivers may
be designated for protection by Congress or, in some cases, be nominated for
inclusion by a Governor and approved by the Secretary of the Interior. The act
addresses the protection of the water flows of designated rivers, both expressly and
by implication. This report examines the purposes, language, and legislative history
of the act in order to analyze its effects on federal and state water rights. It will be
updated as circumstances warrant.
The act declares it to be the policy of the United States that certain rivers that
possess outstanding values shall be preserved in "free-flowing condition," and that
it is the purpose of the act to implement that policy. The act contains several
paragraphs on water rights, stating that the jurisdiction of the states and United States
over waters shall be determined by established principles of law; that any taking of
water rights shall entitle the owner to just compensation; that the jurisdiction of the
states over waters is unaffected by the act to the extent that such jurisdiction may be
exercised without impairing the purposes of the act or its administration; and that the
act shall not be construed to alter interstate compacts.
The act also indicates (albeit by reverse implication) the availability of federal
water rights necessary to accomplish the purposes of the act:
Designation of any stream or portion thereof as a national wild, scenic or
recreational river area shall not be construed as a reservation of the waters of
such streams for purposes other than those specified in this chapter, or in
quantities greater than necessary to accomplish these purposes.
This report discusses federal authority over water, and federal "reserved" and
non-reserved water rights. Based on the language of the act and its legislative
history, it appears that the act creates federal water rights. The act does not specify
the quantity of the right. The amount of the federal right is likely to vary from river
to river depending on the river's flows, the unappropriated flows in the river at the
time of designation, and the values for which the river is being protected. In practice,
federal reserved water rights have not always been claimed if alternative means are
adequate. Necessary water flows sometimes have been secured under state law,
through cooperative agreements, and by purchases from willing sellers.
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The Wild and Scenic Rivers Act and Federal Water Rights, report, March 23, 2006; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc806474/m1/2/: accessed August 17, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.